Plaintiff initiated this action against McCullough, McCullough's parents,
and defendant. (1) In his amended complaint, plaintiff alleged that defendant was negligent
in several respects, which were grouped generally into two categories. First, plaintiff
alleged that defendant was negligent in making its decisions regarding traffic
management and control devices on Fremont Drive between Fremont and Siskiyou
streets. Second, plaintiff alleged that defendant was negligent in failing to warn the
public of the dangers of speeding on the hill along Fremont Drive. In its answer,
defendant affirmatively pleaded that the acts of negligence alleged by plaintiff required
the exercise of discretionary judgment for which defendant was immune from liability.

The evidence showed that the traffic management decisions that plaintiff
challenges were made pursuant to defendant's Neighborhood Traffic Management
Program (NTMP). The NTMP, adopted by the Portland City Council in 1984, was
intended to address the effect of traffic on Portland neighborhoods. According to the
written program document, one of its purposes was to "protect the livability of Portland's
established residential neighborhoods." When the city council adopted the NTMP, it
assigned to the Portland Bureau of Traffic Management (the Bureau) the responsibility
for prioritizing citizen requests; studying and evaluating proposed plans; and determining,
by test installations and other means, the effectiveness of various proposals to satisfy
defendant's traffic management objectives and policies. Because of budgetary limitations,
defendant was able to undertake only about four projects per year.

The written NTMP document set forth specific objectives and policies that
must be considered in devising a plan to address traffic problems identified by
neighborhood residents. Among those objectives and policies were the mitigation of
traffic effects on residential neighborhoods, the promotion of safe conditions for
motorists, bicyclists and pedestrians, the efficient use of resources by prioritizing traffic
management requests, and the employment of traffic control devices and traffic
management devices. A stated policy of the NTMP required the planning and design of
traffic management devices "in keeping with sound engineering and planning practices."
The NTMP required the Bureau, at the conclusion of its study, to "prepare a report and
recommendation along with proposed findings for the [c]ity [c]ouncil outlining the
process followed and the reasons for the recommendations." The plan vested ultimate
responsibility in the city council for approving or rejecting NTMP recommendations.

The initial manager of the NTMP was Janice Newton, an employee of the
Bureau. Newton was not a licensed traffic engineer, but she had taught classes in traffic
management to engineering students at Oregon State University. Newton was the
manager of the program when most of the challenged improvements on Fremont Drive
were selected and installed. Although she participated in the challenged improvement
decisions in this case, each of the decisions was made with the advice of defendant's
traffic engineers.

Newton testified about the decision-making process that was followed in
connection with the improvements. On two separate occasions in the 1980s, based on
input from citizens and recommendations from the Bureau, the city council authorized
traffic control improvements on Fremont Drive in order to address neighborhood
concerns about speeding and traffic volume. The street was unusually wide for a
residential neighborhood and regularly was used as a shortcut by nonresident motorists.
After gathering information, including accident history data for the area, the Bureau
designated the Fremont Drive project as a "Type 2" project under the NTMP and
described it as follows:

"Type 2 - Neighborhood Circulation Projects

- more widespread problem (speed or through traffic, use of a local
street as a shortcut)

- requests prioritized city-wide

- higher data gathering and analysis requirements

- solutions may include circulation changes such as traffic circles, or
diverters

- neighborhood support required through petitions and balloting

- Council approval required for any street alterations"

From 1984-86, the Bureau considered several options to address the
problems of speeding and traffic volume, including narrowing Fremont Drive on the hill,
placing diverters on the hill, and placing a traffic circle in the intersection of Fremont
Drive and Siskiyou Street. The Bureau rejected the street-narrowing alternative because
the Bureau believed it would be expensive and ineffective. It also rejected the notion of
diverters or other blocking devices because it concluded that such measures would create
additional traffic hazards. Finally, the Bureau rejected a traffic circle because it
concluded that a circle would block visibility and create conflict points for turning
movements in the intersection. Ultimately, the Bureau recommended, and the city council
approved by ordinance, the installation of a center island at the Fremont-Siskiyou
intersection at the top of the hill and a traffic circle and another center island on Fremont
Drive at two intersections to the north of Siskiyou Street.

In 1989, the Bureau again reviewed the NTMP plan for the area because
follow-up studies revealed a continuing need to control the speed of traffic on Fremont
Drive. In order to address the speeding problem further, the Bureau recommended the
construction of a curb extension to sharpen the angle of entry from Fremont Street onto
Fremont Drive. The city council approved that improvement by ordinance, and the
extension was constructed as authorized.

Plaintiff's expert witness testified that, despite the measures taken,
defendant had not done enough to control speed on Fremont Drive in the hill area. He
suggested that defendant should have installed more traffic devices--in particular, a traffic
circle at the Fremont-Siskiyou intersection.

At the conclusion of plaintiff's case, the trial court granted defendant's
motion for a directed verdict with respect to each of plaintiff's specifications of
negligence against defendant. In his first and second assignments of error, plaintiff
asserts that the court erred in granting a directed verdict--based on discretionary
immunity--on those specifications in which plaintiff alleged that defendant was negligent
in making its decisions with respect to traffic management and control devices on
Fremont Drive. If the material historical facts as to defendant's actions are not disputed,
as is the case here, whether defendant is subject to discretionary immunity is a question of
law. Hutcheson v. City of Keizer, 169 Or App 510, 518, 8 P3d 1010 (2000).

Plaintiff argues that the Bureau performed nondiscretionary acts in
choosing among alternative strategies to address traffic problems on Fremont Drive and
in failing to effect a cure for those problems. As it did at trial, defendant relies on ORS
30.265(3), which provides, in part:

"Every public body and its officers, employees and agents acting
within the scope of their employment or duties * * * are immune from
liability for:

"* * * * *

"(c) Any claim based upon the performance of or the failure to
exercise or perform a discretionary function or duty, whether or not the
discretion is abused."

Defendant argues that the traffic management and control decisions made by the city
council, based on recommendations from the Bureau, involved the exercise of
discretionary judgment in street design and traffic management decisions and,
accordingly, qualified for immunity under ORS 30.265(3)(c).

Plaintiff replies that defendant's position cannot be squared with controlling
caselaw, particularly Stevenson v. State of Oregon, 290 Or 3, 619 P2d 247 (1980). In
Stevenson, also a wrongful death action, the trial court denied the state's motion for a
directed verdict on the plaintiff's claim that the arrangement and design of traffic signal
lights at a highway intersection were deceptive so that motorists were misled to believe
that they had a green light when in fact they did not. The Supreme Court upheld that
ruling, explaining that a public body is not immune from liability for its negligence under
ORS 30.265(3) merely because the challenged decisions involved highway planning or
design. Instead, the court said that discretion that provides immunity involves

"room for policy judgment, or the responsibility for deciding the adaptation
of means to an end, and discretion in determining how or whether the act
shall be done or the course pursued. It involves the delegated responsibility
for assessment and ranking of the policy objectives explicit or implicit in
the statute and for the judgment that one or more of these objectives will be
served by a given action." Id. at 10 (internal citations and quotations
omitted).

The court stated that a decision is more likely to be discretionary when made at a higher
level of government, or, if delegated, when the person making the decision was assigned
responsibility for making policy choices as distinguished from "the routine decisions
which every employee must make in every action he or she takes." Id. at 14. Applying
those principles to the facts in that case, the court held:

"The case before us is one in which the nature of the underlying
decision by highway division employees--whether to provide special
shielding on the highway traffic lights or to make other changes to eliminate
the alleged misleading condition--might or might not have been made in the
exercise of governmental discretion.

"The burden is on the state to establish its immunity. In some
instances, the nature of the function alone is sufficient to establish
immunity. In other instances, evidence of how the decision was made is
necessary. * * *

"The state has argued that there is immunity in this case because the
arrangement of the trafffic lights and the design of their shielding were appropriate
matters for engineering judgment. It may be conceded that this is so, but there is
nothing in the record to suggest that the responsible employes of the highway
division made any policy decision of the kind we have described as the exercise of
governmental discretion."

Id. at 15-16 (emphasis added).

Plaintiff's reliance on Stevenson is misplaced. Unlike in Stevenson, in this
case there was undisputed evidence as to how the decisions to design and integrate traffic
management and control devices were made on Fremont Drive. When the city council
adopted the NTMP, it assigned to the Bureau the responsibility for prioritizing citizen
requests, studying and evaluating proposed plans, and determining, by test installations
and other means, the effectiveness of various proposals to satisfy defendant's traffic
management objectives and policies. The evidence showed that the Bureau followed that
protocol with respect to the Fremont Drive improvements. However, the final decisions
with respect to the selection of the relevant traffic management and control devices for
those improvements were made by the city council, as required by the NTMP. Further,
the Bureau and the city council did not simply execute a command to create a safe street
environment; they were required to make strategic choices about how best to fulfill the
various policies and objectives of the NTMP. They had to consider whether and how
various options would satisfy those policies and objectives. Although the city council's
decisions were based on recommendations by the Bureau, those recommendations
involved precisely the sort of delegated responsibility that earmarks the exercise of
discretionary judgment.

, 162 Or App 160, 167-68, 986 P2d 62 (1999), rev allowed 329 Or 650
(2000) (holding that, in granting summary judgment, the trial court's disregard of the
plaintiff's proffered expert testimony was not erroneous, because that "testimony would
go not to the question of whether defendant's decision took safety into account but, rather,
would go to the question of the quality of the decision").

In Garrison, the plaintiff argued that the defendant county was not entitled
to immunity for failing to install a safety barrier or warning signs at a solid waste transfer
station. We disagreed with the plaintiff's contention that discretionary immunity could
not shield a public body from its failure to effect a cure in executing a duty of due care:

"[A]s long as the decision-making body has acknowledged and assessed the
various risks to public safety and has made its decision based on its
understanding of those risks in light of its objectives, the body cannot be
held liable if it should turn out that it made the wrong decision." Id. at 167.

Our conclusion in Garrison is consistent with ORS 30.265(3), which provides immunity
for "the performance of or the failure to exercise or perform a discretionary function or
duty, whether or not the discretion is abused." (Emphasis added.) Plaintiff in effect
accuses defendant of abusing its discretion in making traffic management decisions with
respect to Fremont Drive. Because, as we have held, defendant's decisions were
discretionary, it is immaterial to the defense of immunity whether they may have been
imperfect on their merits. The trial court did not err in granting a directed verdict as to
the specifications of negligence challenging defendant's decisions concerning traffic
management and control devices on Fremont Drive.

We turn to plaintiff's third assignment of error, in which he asserts that the
trial court erred in granting a directed verdict on his specification alleging that defendant
was negligent in failing "to post signs to warn traffic of the dangers of speeding on 'Thrill
Hill.'" According to plaintiff, a public body's failure to warn of a danger is not
discretionary and, thus, is not immune under ORS 30.265(3). In support of that
proposition, plaintiff relies on Miller v. Grants Pass Irrigation, 297 Or 312, 686 P2d 324
(1984), in which the Supreme Court held:

"If there is a legal duty to protect the public by warning of a danger or by
taking preventing measures, or both, the choice of means may be
discretionary, but the decision whether or not to do so at all is, by definition,
not discretionary." Id. at 320.

"The issue is not whether plaintiffs were comparatively negligent, which is
indeed a jury question, but, rather, whether the presence of a warning would
have had any additional effect on plaintiffs' knowledge of the risk. In other
words: was there a causal link between the absence of a warning and [the
injured plaintiff's] injuries?" Garrison, 162 Or App at 168.

We noted that the record contained undisputed evidence that the plaintiffs were aware of
the risk of harm at issue in that case and concluded:

"On this record, it is impossible to see how a warning sign would have
altered plaintiffs' behavior in any way or how the absence of a warning
exposed plaintiffs to any greater risk of harm than if they had been warned."
Id. at 169.

Here, too, there is no dispute that McCullough knew the hill, that he previously had been
a passenger in a vehicle that had run it, and that he and his passengers intended to run it
for the recreational experience of speed when the accident occurred. Thus, there was no
evidence that the failure to provide additional posted speed warnings caused Amanda
Mann's death.

Plaintiff's remaining assignments of error do not require discussion.

Affirmed.

1. McCullough and his parents are not parties to this appeal; thus, when we
refer to "defendant," we refer only to the City of Portland.

2. Specifically, plaintiff asserts in his reply brief that, "Assuming, arguendo,
that defendant City's decisions concerning the Fremont Drive improvements were
immune, defendant City is still liable if the street was unsafe after the improvements."

3. A "Steep Hill" warning sign was in place near the crest of the hill at the
time of the accident. Defendant contends that its decision to install that sign, as opposed
to an advisory speed warning sign, was discretionary. The parties have not drawn our
attention specifically to any evidence showing when the sign was installed, who made the
decision to install it, or how the decision was made. In light of our disposition of this
assignment of error, we need not consider whether defendant proved that its choice of
warning signs was discretionary.